COURT PROCEDURE

New Zealand Times, Volume XXXVII, Issue 8345, 4 February 1913, Page 10

COURT PROCEDURE

TWO FINE LAW POINTS. READING OVER AND TYPEWRITING OF EVIDENCE. Two unusual law points that would have a very far-reaching effect if upheld were raised before Mr Justice Chapman at tHte criminal sessions of the Supreme Court yesterday by Mr T. E. Neave, when appearing for John Rickeard Rilstone, charged with indecent assault. Mr Neave said ho had an application to make in respect to the committal of Rilstone from the Magistrate’s Court to the Supreme Court. He contended that the committal was irregular inasmuch as the depositions were not read over to the accused when the evidence was taken prior to his being asked to plead. Therefore no one could present an indictment to tho grand jury at tho Supreme Court against him. The procedure laid down in section 148 of tho Magistrate’s Court Act had not been complied with, and the indictment could not bo presented. Section 139 stated that the depositions shall be read over to the witnesses and signed #*y them and also by the presiding justice before whom the case was heard. . This had been done. Section 148 said that when the evidence for the prosecution had been completed, the justice shall read or cause to bo read the whole of tho depositions to the prisoner before he was committed. If this had not been done the prisoner was entitled to be set at liberty. There were certain statutory requirements with regard to preliminary examinations, and they had to be strictly adhered to. He then cited cases on the point to emphasise the fact that the law must bo adhered to. If tho magistrate failed to read over the before calling on accused to make a statement the proceedings were irregular, and the committal was illegal. This was an important point, as the practice of the Magistrate Court had not fulfilled tho requirements of the Act, and maybe tho objection he now took would apply to the whole of the prisoners committed for trial. However, regardless of results at the present session, his client, ho contended, must be set at liberty for the time being. He did not know whether it was a new point, and in many cases it would not be worth while raising an objection of this kind; but he felt justified in insisting that the strict requirements of the stature should be complied with and he asked his Honor to set the prisoner at liberty. Another matter, said Mr Neave, was that section 138 of the Justices of tho Peace Act required that the statement on oath of those who gave evidence at the preliminary inquiry before a magistrate should be taken down in writing. The depositions in this case had .been taken down by a typewriter, and there waa authority that the taking down of depositions by a typewriter was not in compliance with the statute. It was stated in Stone’s Justices’ Manual, that this was irregular, and evidence printed by a typewriter was inadmissible in evidence. The use of shorthand in taking depositions was not permissible. In a case at Home there was some difficulty orer a clerk’s writing, and he was asked to improve his caligraphy. He used a typewriter, and the matter was referred to the judges, who stated they would not recommend any departure from the existing practice (hand, writing). His Honor pointed out that wills and instruments could be in print, but if they were typewritten it was much more easy to falsify them. Mr Neave said ho mentioned these matters in view of the authorities that had been discovered. His Honor said that with respect to the second question it was merely a matter which he should bring before the judges so that they could ask the Minister of Justice to issue some instructions to Magistrate’s Court clerks. It was a question of convenience. As to tho main question, it seeined to him that the proper view for him to take at present was that they were now there to investigate a charge based on a presentment to the grand jury. It would be very inconvenient if at this stage the court should be asked to inquire into tho question as to whether all the provisions of the Act with respect to the committal had been complied with. The presentment now was the only matter which he had to inquire into, and he did not propose to give effect to Mr Neave’s argument. There was no real analogy between the cases he cited and the present case. If the indictment upon the information when a person was committed for sentence was bad then there could be no valid sentence. He had concurred in the original decision of Mr,Justice Edwards in regard to this point. What would have happened if habeas corpus proceedings had been brought at an early date he did not know. He would consider whether tho matter was serious enough to bring under the notice of tho Appeal Court. Mr Neave: Would your Honor state a case for the Appeal Court? His Honor; I take it you had applied for that. I will do so.